Beach Poker Eugene Oregon

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FILED: March 18, 1998

IN THE COURT OF APPEALS OF THE STATE OF OREGON

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CITY OF EUGENE,

Appellant,

v.

JIGGLES TAVERN & GRILL, JJ'S TAVERN
& FINE FOODS, JO FEDERIGO'S KOWLOON
RESTAURANT, LUCKEY'S CLUB CIGAR,
LYON'S RESTAURANT, MOOSE LODGE
#668-EUGENE, ORIGINAL JOE'S OVERTIME
TAVERN, PERRY'S REST INC., RASCALS,
RED ROOSTER, RELIEF PITCHER TAVERN,
RICH'S DUG OUT, ROUNDHOUSE PIZZA,
SAM'S PLACE, SENOR FROG'S, SHER'S
TAVERN, SHOOTER'S PUB & GRILL, SIDE
POCKET TAVERN, SILVER DOLLAR CLUB,
SIXTH STREET GRILL, SOUTHTOWNE
LANES, SOUTHTOWNE PUB, THE COOLER
TAVERN, THE EMBERS, THE GRILL FOOD &
SPIRITS, THE KEG TAVERN, THE OLD PAD,
THE OTHER PLACE, THE TINY TAVERN,
TREEHOUSE RESTAURANT, BLISS STEAKRANCH,
BREW AND CUE TAVERN, DOC'S PAD, ELK'S LODGE
#357-EUGENE, EMERALD LANES, FAIRFIELD LANES,
FIRS BOWL, FITZPATRICK'S TAVERN, GOOD
TIMES CAFE, GREAT ALASKA BUSH CO., GUIDO'S
RESTAURANT, HOLIDAY INN, HOWDY PARDNER
TAVERN, JASPER'S DELI & GOURMET,

Respondents,

and

LAND O'GOSHEN TAVERN, LB'S CARROUSEL,
PRAIRIE SCHOONER BAR, ROAD HOUSE,
STONE CREEK CAFE & SALOON, TAYLOR'S
COLLEGE SIDE INN, TEDDY BEAR PIZZA, TOM'S
TAPPER TAVERN, CLUB WASH, EAGLES #275-EUGENE,

Defendants.

(16-95-05523; CA A95558)

Appeal from Circuit Court, Lane County.

David V. Brewer, Judge.

Argued and submitted February 23, 1998.

Judith Giers argued the cause for appellant. On the briefs were Wiliam F. Gary,Arden J. Olson and Harrang Long Gary Rudnick P.C.

Michael Mills argued the cause for respondents Steakranch, Brew and CueTavern, Doc's Pad, Elk's Lodge #357-Eugene, Emerald Lanes, Firs Bowl,Fitzpatricks Tavern, Good Times Cafe, Great Alaska Bush Co., Guido'sRestaurant, Holiday Inn, Howdy Pardner Tavern, Jasper's Deli & Gourmet,Jiggles Tavern & Grill, JJ's Tavern & Fine Foods, Jo Federigo's, KowloonRestaurant, Luckey's Club Cigar, Lyon's Restaurant, Moose Lodge #668-Eugene, Original Joe's, Overtime Tavern, Perry's Rest Inc., Red Rooster,Relief Pitcher Tavern, Rich's Dug Out, Roundhouse Pizza, Sam's Place,Senor Frog's, Sher's Tavern, Shooter's Pub & Grill, Side Pocket Tavern,Silver Dollar Club, Sixth Street Grill, Southtowne Pub, The Cooler Tavern,The Embers, The Grill Food & Spirits, The Keg Tavern, The Old Pad, TheOther Place, The Tiny Tavern and Treehouse Restaurant (OregonRestaurant Association). With him on the brief was Mills & McMillin.

William N. Kent waived appearance for respondent Rascal's Tavern.

Terrance J. Hammons and Hammons, Mills & Spickerman waived appearance for respondents Fairfield Lanes and Southtowne Lanes.

Before Riggs, Presiding Judge, and Deits, Chief Judge,* and Landau, Judge.

Beach Poker Eugene Oregon Reservations

RIGGS, P.J.

Affirmed.

Deits, C.J., vice Leeson, J.

RIGGS, P.J.

Plaintiff City of Eugene (City) initiated this action for declaratory reliefconcerning the enforceability of its tax on earnings from video poker machines. In early1995, the City enacted an ordinance imposing a 10 percent tax on the earnings fromvideo poker machines within the city limits. That tax went into effect on April 4, 1995. Shortly thereafter, the legislature passed Senate Bill 328, codified in part at ORS461.560. That statute prohibits cities, counties and other political subdivisions of thestate from imposing or collecting taxes on the earnings of video poker machines. Thatstatute went into effect on September 8, 1995.

The present case arises from the City's efforts to collect the tax imposedunder its ordinance between the effective date of the ordinance, April 4, 1995, and theeffective date of the law, September 8, 1995. The City argues that the legislature did notintend to retroactively preempt its ordinance, and alternatively argues that if thelegislature did intend to do so, retroactive preemption violates the home rule provisionsof the Oregon Constitution.(1) Or Const, Art IV, § 1(5) and Art XI, § 2. Defendants areowners of establishments that received bills for taxes accruing under the ordinancebetween April 4 and September 8, 1995, but did not pay those bills. Defendants havetaken the position that the tax may not be collected. On cross-motions for summaryjudgment, the trial court ruled that the legislature retroactively preempted the ordinance,and that such retroactive preemption did not violate the home rule provisions of theOregon Constitution. For the reasons that follow, we affirm.

Before addressing the merits of the parties' arguments concerningretroactivity, we must first decide whether the City has presented us with 'an actualfactual setting that makes such a decision necessary.' Stevens v. City of Cannon Beach,317 Or 131, 147, 854 P2d 449 (1993), cert den 510 US 1207, 114 S Ct 1332, 127 LEd2d 679 (1994) (citation and internal quotation marks omitted). For the followingreasons, we conclude that the factual setting of this case does not make it necessary for usto determine whether the legislature intended to retroactively preempt the City'simposition of the tax in question between April 4 and September 8, 1995.

Section 1 of Senate Bill 328 (1995) added the following provision to ORS461.560:

'A city, county or other political subdivision in this state may notimpose, by charter provision or ordinance, or collect a tax that is imposedon lottery game retailers only and that is measured by or based upon theamount of the commissions or other compensation received by lottery gameretailers for selling tickets or shares in lottery games. However, if a city,county or other political subdivision levies or imposes generally on anondiscriminatory basis throughout the jurisdiction of the taxing authorityan income, gross income or gross receipts tax, as otherwise provided bylaw, such tax may be levied or imposed upon lottery game retailers.'

Section 2 Senate Bill 328 (1995) further provided that the above-quoted statutoryamendment 'do[es] not apply to any tax if the charter provision or ordinance imposingthe tax is in effect and operative prior to February 28, 1995.'

Beach Poker Eugene Oregon

Beach Poker Eugene Oregon

The City argues that Senate Bill 328 (1995) was not intended to operateretroactively, and that the provision in Section 2 of the bill is a standard 'grandfather'clause rather than a retroactivity provision. The City argues that Section 2 cannot beconstrued as prohibiting a city from imposing a tax after February 28, 1995, but beforethe effective date of Senate Bill 328. Defendants respond that the trial court correctlyconcluded that Section 2 of the act applied retroactively to invalidate the City's tax.

Beach Poker Eugene Oregon Motel 6

Motel

We need not reach those arguments concerning the meaning of Section 2and whether or not it prohibits imposition of a video poker tax between April 4 andSeptember 8, 1995, because we agree with defendants that Section 1 of the bill simplyprohibits the City from collecting such a tax after September 8, 1995, in any event.(2) Asnoted above, defendants in this case are retail establishments that were billed but did notpay the tax. As of September 8, 1995, Section 1 of Senate Bill 328 (1995) declares that'a city * * * may not impose, by charter provision or ordinance, or collect a tax that isimposed on lottery game retailers[.]' The City did not, in fact, collect the tax imposedon defendant lottery game retailers before the effective date of the statute. We rejectwithout further discussion the City's contention that it 'collected' the taxes in question bybilling defendants for them; a tax that has not been paid has not been collected. Therefore, we need not address the question whether the legislature intended to preemptthe imposition of the City's tax between April 4 and September 8, 1995. Regardless ofwhether the City could impose the tax between those dates, it could not collect the taxafter September 8, 1995. Because the City does not argue that the provision of Section 1barring the collection of taxes on video poker machines after September 8, 1995, violatesthe home rule provisions of the Oregon Constitution, we need not address the parties'constitutional arguments.

Affirmed.

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1. The City does not challenge the authority of the legislature to enact the lawin question.

2. Although defendants made this argument in its cross-motion for summaryjudgment, the trial court did not base its decision on this ground. However, this courtmay affirm a trial court's ruling if it is correct on any ground. See, e.g., Tarwater v.Cupp, 304 Or 639, 644 n 5, 748 P2d 125 (1988) (citing cases).